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Card Check Election Case Teed Up for Labor Board

An NLRB regional director has filed an order seeking to force Starbucks to recognize and bargain with a union due to alleged unfair labor practices committed by Starbucks during the campaign, after the union lost a representation election at one of its locations. The case could serve as a vehicle for the Board to allow unions to gain recognition without a formal secret ballot election.

Bargaining orders rare: The Board only issues so-called “Gissel” bargaining orders (i.e., orders to bargain with a union) where a union has obtained a majority of petitioned-for employees’ signed authorization cards (“card check”) and where the employer has committed unfair labor practices during a representation campaign that are so egregious as to destroy any possibility of a fair election. Such orders have been exceedingly rare over the last six decades. 

“Serious and substantial” misconduct: The regional director in the present case cited alleged “serious and substantial” misconduct by Starbucks during the union’s representation campaign “such that there is only a slight possibility of traditional remedies erasing [the alleged unfair labor practices’] effects and conducting a fair election” as the basis for seeking a bargaining order. The union had previously obtained a majority of employees’ signed authorization cards.

Radical change sought by GC Abruzzo: The case could provide the Board an opportunity to reexamine decades-old precedent regarding bargaining orders. As we have reported previously, General Counsel Abruzzo is seeking to establish a new standard under which employers could be forced to recognize and bargain with a union on the basis of card check alone, unless the employer can provide a good faith basis to question the union’s majority status – a high bar for the employer to meet. The Board could use this case to establish such a standard, which would represent a radical change to federal labor law and make it far easier for unions to gain worker representation. 

Card check elections? More frequent bargaining orders? It is unclear whether Democratic Board members will fully adopt Abruzzo’s approach and allow for card check elections on a regular basis. The Board could instead lower the requirements for issuing bargaining orders and issue them where any alleged unfair labor practices have been committed during the campaign process, rather than only where such violations are so severe as to destroy any possibility of a fair election. This approach was included in the PRO Act, which passed the House last year and continues to languish in the Senate. 

Outlook: The case will first be heard by an administrative law judge who will determine whether a bargaining order is appropriate, meaning a final decision by the Board is likely months away at the earliest. Even then, the company could challenge the Board’s decision in the federal courts. Employers should keep a close eye on the case as it moves forward, as it could provide the Board an opportunity to substantially transform the union election process. 

Learn about this issue and more at our upcoming Future Workplace Policy Council Mid-Year Labor and Employment Conference, which will feature a keynote discussion with Board General Counsel Jennifer Abruzzo. More information and registration details can be found here.

Published on: May 27, 2022

Authors: Gregory Hoff

Topics: Employment Law